last updated April 30, 2007

Some scholars are searching for more gender-neutral ways to provide a remedy to individual victims of sexual harassment. Some theorists characterize sexual harassment as a violation of dignity and hope to prohibit harassing behavior directed towards all workers, including those who may not be particularly vulnerable to harassment by virtue of membership in a particular social group.

Western Europe

In a few Western European countries, the focus has shifted away from prohibiting sexual harassment as a form of sex discrimination towards prohibiting all harassing behavior in the workplace. Laws adopted recently in France, Germany and Sweden have addressed "moral harassment," "mobbing," or "workplace bullying," all of which subordinate questions of gender dynamics by looking to the broader question of rights for all workers. For a more detailed discussion see Sexual Harassment; Law and Policy: Domestic Laws. It is worth noting, however, that the law criminalizing "moral harassment" in France incorporates a prohibition of discriminatory conduct in connection with moral harassment which is more like American law than anything to be found in Sweden or Germany. Adapted from Gabrielle S. Friedman and James Q. Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, Columbia Journal of European Law Vol. 9, 241 (2003).

The concept of sexual harassment adopted at the European Union level has merged concern for the subordination of women with concern about preserving dignity in the workplace. In 2002, the Parliament and Council of the European Union mandated by directive that Member States implement legislation that outlaws sexual harassment because such behavior is a form of sex discrimination in violation of the equal treatment principle under EU law. The definition of sexual harassment makes the violation of worker dignity a central element of the offense. Under the directive, sexual harassment is defined as follows:

[sexual harassment occurs] where any form of unwanted, verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.

From Directive 2002/73/EC of the European Parliament and of the Council of 23 Sept. 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

United States

There have been advocates of applying a dignity approach to harassment in the United States as well. "Robert Post in particular has devoted great efforts to showing that American tort law and constitutional law can accommodate the protection of individual "dignity" in a way that parallels European concepts of dignity. Regina Austin, too, argued eloquently in 1988 for protecting workers in general against harassment, through tort law of the intentional infliction of emotional distress."

From Gabrielle S. Friedman and James Q. Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, Columbia Journal of European Law Vol. 9, 241 (2003) (citing Robert C. Post, the Consitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation; and Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, Stanford Law Review, Vol. 41, 1 (1988)).

Anita Bernstein and Rosa Ehrenreich are other notable U.S. theorists who have articulated an approach to harassment based on dignity and respect. The following are summaries of their arguments:

Hostile environment sexual harassment, I argue, is a type of incivility or -in the locution that I prefer—disrespect. For purposes of doctrine, accordingly, hostile environment complaints should refer to respect; the plaintiff should be required to prove that the defendant—a man, or a woman, or a business entity—did not conform to the standard of a respectful person. This respectful person standard would rightly supplant references to reason and reasonableness; respect is integral to the understanding and remedying of sexual harassment, whereas reason is not. In giving content to the ideal of equality behind Title VII as well as the ideal of individual autonomy behind dignitary-tort law, this respectful person standard would fit within the two most important legal bases for redressing sexual harassment in the workplace. Focus on respect addresses the concerns of sexual harassment in the workplace. Focus on respect addresses the concerns of both those who identify with the imperfect humanity of the accused harasser and those who seek foremost to purge sexual coercion from the workplace.

From Anita Bernstein, Treating Sexual Harassment with Respect, Harvard Law Review, Vol. 111, 445, 450-451 (1997).

Rosa Ehrenreich, for example, would redirect problematic harassment claims (e.g., cases of same-sex harassment) into the torts system, where, she argues, court should provide a remedy for harassment of any sort, whether based on sex, gender, physical appearance, or even personal animosity. Despite the poor record of the common law courts in this area, Ehrenreich favors tort law because she sees the primary harm of harassment as a dignitary harm that is not necessarily tied to the subordinate status of women or the imposition of gender roles on individuals. Most feminist commentators, however, continue to be skeptical about the prospects for an adequate remedy for sexual harassment under prevailing tort law, echoing MacKinnon's early observations that tort law is fundamentally individualistic and not likely to capture the social dimensions of the injury of sexual harassment in the important context of the workplace.

From Martha Chamallas, Introduction to Feminist Legal Theory 254-255 (2003) (discussing Rosa Ehrenreich, Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment, Georgetown Law Journal, Vol. 88, 1 (1998-1999)).

Critiques of the Dignity Approach

By de-emphasizing the issue of gender in sexual harassment, the dignity approach moves sexual harassment out of the context of discrimination and violence against women, and links it instead with broader questions of individual dignity. One positive result of such an approach is that it may be more inclusive of a wide variety of harassment claims, including same sex cases. A man would be able to pursue a claim of harassment against another man without having to prove that the harassment was based on his sex.

The shift in focus away from issues of gender-based violence, however, may mask an underlying societal cause of sexual harassment, the subordination of women. Kathryn Abrams accuses dignity theorists of fatally depoliticizing the issue of sexual harassment by focusing on the individual harm rather than the collective harm to women. For her critique of the dignity approach to sexual harassment theory, see Kathryn Abrams, The New Jurisprudence of Sexual Harassment, Cornell Law Review, Vol. 83, 1169 (1998).

See also United Nations Division for the Advancement of Women, Good Practices in Combating and Eliminating Violence Against Women 6 (2005), stating,“[T]he important naming of ‘sexual harassment’ in the late 1970s has been eclipsed in many western countries by gender-neutral concepts of ‘bullying’ and ‘violence at work.’ In the process, the complexity of sexual harassment has been lost, as has its connection to gender inequality. The integration of violence against women into mainstream human rights thinking and discourse should not be at the cost of losing a sense of the violations of women’s bodies, minds and spirits.”)